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TMI Blog1988 (1) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to this Court against the judgment therein. What falls for consideration in all these cases is whether by reason of Explanation IIA to Section 2(25) of the Act, a person in occupation of a homestead or a hut belonging to another during the period stipulated in the Explanation would become a Kudikidappuka ran and be entitled to Kudikidappu rights under the Act. For a proper understanding of the issue. we may make a brief reference to the history of the Legislation and to some of the earlier decision of the High Court. Originally. the occupants of dwelling houses or huts on homestead land belonging to others were only given a right to remove the materials of the super-structure put up by them or alternately to seek monetary compensation thereof. The restricted conferment of rights exposed the occupants of huts belonging to others to indiscriminate eviction. To afford protection to them, the erstwhile Cochin State and the Travancore State passed suitable enactments to safeguard their possession. Eventually, when the Travancore-Cochin State came to be formed, an Act known as the Travancore- Cochin Prevention of Eviction of Kudikidappukars Act, 1950 was passed. Even under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmencement of the Act and that a trespasser forcibly entering upon the land will not be entitled to claim rights as a Kudikidappukaran. Subsequent to this decision, the Act underwent several amendments under the Kerala Land Reforms (Amendment) Act, 1969. One of the changes effected was the substitution of Explanation II (extracted above) by a proviso which read as under: A Provided that a person who, on the 16th August, 1968 was in occupation of any land and the homestead thereon, or in occupation of a hut belonging to any other person, and who continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be in occupation of such land and homestead, or hut, as the case may be, with permission as required under this clause. (Emphasis supplied). The proviso came to be construed by Krishna Iyer, J. (as he then was) in Mariam and others v. Ouseph Xavier, [19711 K.L.T. 709 and the learned Judge differed only partly from the view taken in Gopalan v. Chellamma (supra) and held that the initial leave to occupy is obligatory to make the dweller a Kudikidappukaran and that the proviso operates only at the next stage and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto has to be deemed a Kudikidappukaran. However, in Moideenkuktty v. Gopalan, [1980] K.L.T. 468 another Division Bench took a contrary view and held that the legal fiction which had all along existed right from 1955 under Section 4(2) of the Travancore-Cochin Act, 1955, Explanation II to Section 2(20) of the Agrarian Relations Act, 1961, Explanation II To Section 2(25) of the Kerala Land Reforms Act, 1964 and the proviso thereto as inserted by the Amending Act, 1969 was only intended to protect a Kudikidappukaran who began his occupation of a Kudikidappu with permission by providing for the statutory continuance of the permission initially given till the commencement of each of the above mentioned Statutes and the Explanation II-A introduced by Act 17 of 1972 had not altered or widened the legal fiction so as to cover a case of initial permission also. The Bench, therefore, held that unless initial permission for occupation of a homestead or hut is established, Explanation II-A will not be attracted. It was on account of the conflicting views taken by the two Division Benches in Achuthan's case (supra) and Moideenkukutty's case (supra), a reference was made to a Full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mestead' and 'hut' from the fiction and laying stress on the status as Kudikidappukaran by enacting Explanation II-A to Section 2(25) of the K.L.R. Act as per the. K.L.R. (Amending) Act, 1972. At the outset it has to be pointed out that Explanation II-A has been made a non-obstante provision in order to give over-riding effect to the Explanation over any judgment, decree or order of any Court passed against a person who was, on 16.8.1968 in occupation of a homestead or hut thereon and who continued to be in such occupation till the 1st day of January 1970. Now, if we look at Explanation II to Section 2(25) as it originally stood and the proviso which replaced it under the 1969 (Amendment) Act and Explanation II-A which was introduced by the amending Act 1972, we may notice the significant changes made by the Legislature and the underlying reasons therefor. In Explanation II, it was laid down that any person in occupation of a Kudikidappu during the prescribed period viz. 11.4.1957 to the date of commencement of the Act shall be deemed to be in occupation of such Kudikidappu with permission as required under this clause . Since it was held in Gopalan's case (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exceed ₹ 750 or rentwise exceed a monthly rent of ₹ 5 and the occupant should not be in possession of land exceeding three cents in extent in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township either as owner or as a tenant on which he could erect a building. viewed in the proper perspective, Explanation II-A constitutes a second limb of Clause (25) of Section 2 devised by the Legislature to give full effect to its intendment viz. entitling a person to claim Kudikidappu rights under Section 2(25) if he proves initial permission to occupy the land and the dwelling house without the need of proving continuous possession during a prescribed period of time or in the alternative to claim Kudikidappu rights under Explanation II-A by proving continuous occupation during the period of time prescribed by the Explanation without the necessity of proving obtainment of initial permission to occupy the land and the dwelling house thereon. Explanation II-A has got operative force of its own and this may be seen from the fact that Clause (25) of Section 2 as well as Sub-Clause (b) of the proviso to Explanation II-A l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court observed as follows: It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words 'as if he were' in the definition of owner in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so. It has also to be borne in mind that the Kerala Land Reforms Act is a beneficial enactment intended to secure occupancy rights to farmers and agricultural labourers who do not have homestead lands and dwelling places of their own for their occupation. Incidentally, we may mention that Act 17 of 72 has been subsequently included in the 9th Schedule to the Constitution and this would reflect in full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion so as to fulfil the object of the legislation and comply with the legislative intent. Mr. Abdul Khader, learned counsel for the respondent however sought to contend, that whichever way Explanation II-A is construed i.e. whether as a legal fiction or as a re-enacted provision of substantive law the Explanation would still be trammelled by the basic prescription contained in the main clause regarding permissive occupation. The counsel argued that so long as clause (25) of Section 2 continued to define a Kudikidappukaran as a person who has been permitted .. by a person in lawful possession .. to have the use and occupation of a portion of the land for the purposes of erecting a homestead/hut belonging to him in the said land , the Explanation would necessarily be governed and controlled by the words in Clause (25) of Section 2 and as such even if a person was in occupation of a homestead or hut between the period 16.8.1968 to 1.1.1970 he will not be entitled to claim rights as a Kudikidappukaran unless he is able to prove grant of initial permission by the owner of the land or the hut, as the case may be. It was argued that it was not the intention of the legislature to conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mommutty's son Hamsa Haji Ors., JT 1987 2 SC 520 delivered on 29.4.1987 wherein Section 7D of the Kerala Land Reforms Act, 1963 as amended by the Kerala Land Reforms (Amendment) Act, 1969 has been interpreted as conferring benefit thereunder only on persons whose occupation of the private forests or unsurveyed lands had a lawful origin and not on persons in unlawful occupation based on trespass or forcible and unlawful entry. We have carefully considered the judgment and find that the pronouncement therein does not in any way lend support to the contentions of the respondents herein. The scheme of Sections 7A, 7B, 7C, 7D, 8 9 of the Kerala Land Reforms Act, 1963 is entirely different and this position is succinctly brought out by the following passage in the decision referred to above. The Court had summed up the scheme of the Act in the following words: On a careful scrutiny of the aforesaid provisions, it becomes abundantly clear that the intention of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be Government's land of which they could later seek assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission to him by the respondent for occupying the hut. Since we have held that a claimant for Kudikidappu rights under Explanation II-A, who does not suffer any disqualification under the proviso, need only prove the factum of possession between the prescribed dates for being placed on par with a Kudikidappukaran as defined in Section 2(25) of the Act, the appeal has to succeed and will accordingly stand allowed. Consequently, the order of the Land Tribunal Telicherry in O.A. No. 22 of 1973 will stand restored but having regard to the lapse of time, the appellant is directed to pay the entire amount towards the value of the hut and the land, as fixed by the Land Tribunal, within three months from today. As regards C.A. No. 2505 of 1977, the appellant claimed Kudikidappu rights in respect of two sheds set out in plaint A schedules. In so far as A schedule property is concerned, the appellant is not entitled to any relief because it has been concurrently found by all the Courts that he had taken the shed on lease in the year 1954 under a rent chit for running a tea shop and that the shed continued to be in existence and it had not been rebuilt by the appellant. However, in so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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